search
noun · Durchsuchung
A Durchsuchung of premises normally requires a judicial order, § 105 StPO, and the prosecutor or her officers may order it only where delay would defeat its purpose, a shortcut the Federal Constitutional Court has confined tightly. German law also separates the search of a suspect, § 102 StPO, from the search of anyone else, § 103 StPO, which carries stricter conditions.
Which translation, when
Why
Search translates as Durchsuchung, and the German rules are more structured than the English word conveys. The Code separates two situations. Section 102 StPO deals with the person under suspicion: where someone is suspected as perpetrator or participant in an offence, his home and other premises, his person and the things belonging to him may be searched, both for the purpose of apprehending him and where it is to be presumed that the search will lead to the discovery of evidence. Section 103 StPO deals with everyone else, and its conditions are stricter, requiring facts from which it may be concluded that the person, the trace or the object sought is on the premises. The second structural point is who may order the measure. Under § 105 Abs. 1 StPO the order belongs to the judge, and the prosecution service and its investigating officers may order a search only where there is Gefahr im Verzug, that is where obtaining the judicial order would endanger the purpose of the measure. The Federal Constitutional Court has drawn that exception narrowly, demanding that the officers show they tried to reach the duty judge and that they documented the reasons for their assumption, so a translation should not present the prosecutorial order as an equal alternative. Consent removes the need for an order, but it must be voluntary and informed and may be withdrawn. The surrounding vocabulary rewards care: German distinguishes the Durchsuchung from the Durchsicht of seized papers and data, from the physical examination of the accused under § 81a StPO and from what happens to items found, which the seizure entry holds; Razzia belongs to newspapers rather than to files.
Typical mistakes
- Searches are ordered by a judge and only exceptionally by the prosecution service, § 105 StPO, so presenting the prosecutorial order as a normal route misstates the reservation.
- Sections 102 and 103 StPO impose different conditions for suspects and for others, so using one rule for both understates the protection of uninvolved persons.
- A physical examination of the accused runs under § 81a StPO, so calling it a Durchsuchung names the wrong measure.
What matters
Reviewing a German search order for a client: the note should identify whether § 102 or § 103 StPO applies, check who ordered the measure and, where the prosecution did, whether the reasons for urgency were documented.
What the machine misses
Left to a machine, search becomes Suche or Hausdurchsuchung used indiscriminately, and the procedural measure is the Durchsuchung of §§ 102 and 103 StPO under the judicial reservation of § 105 StPO; the loose word also hides that suspects and uninvolved persons are governed by different provisions with different thresholds.
Examples
| a search of the premises | eine Durchsuchung der Räume |
| a search warrant | ein Durchsuchungsbeschluss |
| danger in delay | Gefahr im Verzug |
| the search of a person not under suspicion | die Durchsuchung bei anderen Personen |